108
Souter, J., dissenting
as well. The constitutional text on federal-question jurisdiction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of Chisholm any influence that general common-law immunity might have had as an interpretive force in construing constitutional language would presumably have been no greater when addressing the federal-question language of Article III than its Diversity Clauses. See Sherry, The Eleventh Amendment and Stare Decisis: Overruling Hans v Louisiana, 57 U. Chi. L. Rev. 1260, 1270 (1990).
Although Justice Iredell's dissent in Chisholm seems at
times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, Chisholm, supra, at 434-435, his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. As Justice Stevens persuasively explains in greater detail, ante, at 78-81, Justice Iredell's dissent focused on the construction of the Judiciary Act of 1789, not Article III. See also Orth, The Truth About Justice Ire-dell's Dissent in Chisholm v. Georgia (1793), 73 N. C. L. Rev. 255 (1994). This would have been an odd focus, had he believed that Congress lacked the constitutional authority to impose liability. Instead, on Justice Iredell's view, States sued in diversity retained the common-law sovereignty "where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country." 2 Dall., at 435 (emphasis deleted). While in at least some circumstances States might be held liable to "the authority of the United States," id., at 436, any such liability
an Amendment was ratified. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1926-1927 (1983).
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